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OFFICE FOR CIVIL RIGHTS
SEP 3 () 2008
illiam Hughes l" Street, N.W. Florida 34120 Cannivet Upolo Lane Florida 3411 9 Re: OCR Complaint No. 04-07-1264 . Mr. Hughes and Ms. Cannivet: letter is to notify you of the determination of the U.S. Department of Education ), Office for Civil Rights (OCR), in the above-referenced complaint filed ".0:."'.4"''''' the Collier County School District (District). You (Complainants 1 and 2), as n~"I'i1t'" of students with disabilities, alleged that the District has not established and rmptementeu a system of procedural safeguards that includes an impartial due hearing process consistent with the legal requirements of Section 504 of the Rehabilitation Act of (Section 504). is responsible for enforcing Section 504, 29 U.S.c. § 794, and its implementing 34 C.F.R. Part 104, which prohibit discrimination on the basis of disability by of federal financial assistance from the Department. OCR is also responsible Title II of the Americans with Disabilities Act of 1990, 42 U. S.C. § 12131 , and its implementing regulation, 28 C.F.R. Part 35, which prohibit discrimination basis of disability by public entities. As a recipient of Federal financial assistance the Department and as a public entity, the District is subject to these laws. y, OCR had jurisdiction to investigate this complaint.
on the complaint allegation, OCR investigated the issue of whether the District has "''''.... lished and implemented, with respect to actions regarding the identification, b . or education placement of persons, who because of disability, need or are to need special instruction or related services, a system of procedural safeguards consrstent with the Section 504 implementing regulation at 34 C.F.R. § 104.36.
a compliance determination, OCR reviewed relevant records and interviewed complainants and District officials, As a result of this investigation, OCR that the evidence is sufficient to support a finding that the District's Section rnr"·,... ..."ural safeguards, as written and as implemented, do not fully comply with 34 § 104.36. We set forth below the bases for this determination.
61 FORSYTHST. S.W., SUITE 19T70, ATLANTA. GA 30303 404-562-B350, Fax: 404-562-B455. TDD: 404-562-B454 www.ed.gov
Hughes and Ms. Cannivet
Ba kground Coplainant 1 has an autistic child, who experienced two epileptic seizures in December 20 5 while attending Pine Ridge Middle School. Complainant 1 asked the District to all w a service dog to accompany the child in order to detect seizures in advance and to hel with behavior management. On January 17,2006, Complainant I gave the principal a I tter, which stated that should the Individualized Education Program (IEP) Team deny his request to amend the child's IEP to allow the presence of the service dog, the letter wa to serve as a request for a due process hearing under IDEA. The District contacted the Division of Administrative Hearings and, on January 20, 2006, a notice of a hearing issued. On January 27, 2006, Complainant 1 gave a letter to the District's Section Coordinator that said if the Coordinator decided the same request for a service dog wa not valid, he was requesting a Section 504 due process hearing. On February 3, 2006, the District convened a Section 504 meeting and determined that the existing Section 504 services for the Student were sufficient and, therefore, that all ing a service dog to be present was not necessary. As a result, Complainant 1 asked the District to consider the January 27 request to the Section 504 Coordinator to be his req est for a due process hearing. The District representative told Complainant 1 to pro ide the information, and he would process it. The District asserts that Complainant I, owever, did not submit another a due process hearing request. On March 31, 2006, Co plainant l' s attorney notified the District in a letter that, since the District in the , Feb iary 3 meeting disallowed the presence of the service dog to be added to the Stu ent's Section 504 plan, the issue should be incorporated into the IDEA due process he ing. On April 12,2006, the Administrative Law Judge determined that, because the Dis .ct had not, by contract, authorized the Division of Administrative Hearings (D AH) to conduct a Section 504 due process hearing, he lacked jurisdiction to hear the Sec ion 504 issue raised regarding the service animal. On atto he ac Feb the Co 504 April 24, 2006, the District's attorney sent a memorandum to Complainant 1's ey identifying who had been selected as the hearing officer for the Section 504 ing; however, no hearing followed. The District learned that Complainant 1 had filed mplaint with OCR. In interviews with the District's Section 504 Coordinator on 25, 2008, the Executive Director of Student Services on February 22, 2008, and School Board Attorney on February 26, 2008, OCR was informed that that plainant 1's filing of a complaint with OCR rendered moot his request for a Section due process hearing.
ctober 18, 2006, the administrative law judge dismissed Complainant l's IDEA cia' as moot because Complainant 1 had enrolled the child in an out-of-state school dist ict that allowed the service dog to accompany the child. Complainant 1 seeks to reenr II the child in the District and has pending a civil action in U.S. District Court, .ng an order to allow the dog to accompany the child to school when he re-enrolls in District. This underlying substantive issue is not before OCR and was not tigated by OCR. Rather, Complainant l's allegation that OCR investigated is
Mr Hughes and Ms. Cannivet Pae 3 wh ther the District, procedurally, failed to provide him with his requested due process he ing in noncompliance with Section 504. plainant 2 has a child who has post-traumatic stress disorder, general anxiety dis rder, panic attacks, and obsessive-compulsive disorder, conditions that, according to Co plainant 2, caused him to have debilitating phobia of attending North Naples Middle Sc 001 after he allegedly was subjected to bullying there. As a result, Complainant 2 ask d for and obtained a homebound placement for the child from the District. The Dis rict subsequently proposed a change of placement to transition the child back to the sch 01 beginning February 22,2006, and terminated homebound services on February 28, 20~6. On March 2, 2006, ~omplainan. t 2 re.q. ested a due proce.ss.heari~g, nO.tonly under u ID A, but also under Section 504 and ADA, because some of the child's impairments wer not among the categories of disability listed as covered by IDEA. The District con acted DOAH to arrange a hearing. On June 1,2007, the Administrative Law Judge, citi g the state law implementing IDEA, found that the placement proposed by the Dis rict was appropriate. The decision made no mention of Section 504 or the ADA. Co plainant 2 seeks to re-enroll the child in the District and has pending a civil action in U.S District Court seeking an order for appropriate placement and compensatory edu ation. Complainant 2's substantive issue pending in private litigation also is not bef re OCR nor was investigated by OCR. Rather, OCR investigated Complainant 2's aIle ation that the District failed to provide Complainant 2 with an impartial due process he ing to address issues arising solely under Section 504 and not IDEA.
The Section 504 implementing regulation at 34 C.F.R. § 104.36 provides that "a recipient that operates a public elementary or secondary education program or activity shall es lish and implement, with respect to actions regarding the identification, evaluation, ucational placement of persons who, because of [disability], need or are believed to nee special instruction or related services, a system of procedural safeguards that incl des notice, an opportunity for the parents or guardian of the person to examine rele ant records, an impartial hearing with opportunity for participation by the person's par nts or guardians and representation by counsel, and a review procedure. Compliance wi the procedural safeguards of section 615 of the [Individuals with Disabilities Ed ation Act of 2004 (IDEA)] is one means of meeting this requirement." Although nei er Title II nor its implementing regulation contain a specific provision regarding imp ial due process hearings, the Title II implementing regulation, at 28 C.F.R. § 35.10 3, provides that it "shall not be construed to apply a lesser standard than the stan ards applied under Title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the reg lations issued by Federal agencies pursuant to that title." OCR, therefore, interprets Titl II consistently with Section 504. Ad itionally, Appendix A to Subpart D of the Section 504 implementing regulation pro ides that "[iJt is not the intention of the Department, except in extraordinary stances, to review the result of individual placement and other educational
Mr Hughes and Ms. Cannivet Pa e4
de isions, so long as the school district complies with the 'process' requirements of this surart (concerning identifi cation and location, evaluation, and due process procedures)."
Fa tual Findings
At he time that both of the complainants requested Section 504 due process hearings, the Di ict operated pursuant to procedures set forth in its Procedures Manual - Section 504 of he Rehabilitation Act oj 1973 and the Americans with Disabilities Act (Section 504 U ual): Parents/guardians have the right to examine all relevant records relating to decisions involving identification, evaluation and placement. Parents/guardians have the right to file a local grievance and request mediation or a due process hearing to resolve issues relating to the identification, evaluation or placement of their child. When parents/guardians file a grievance with respect to the decisions of the Child and Adolescent Support Team (CAST) considering their child for Section 504 eligibility and/or the recommended accommodations, the grievance should be given in writing to the school principal who will attempt to resolve the issue within ten (10) school days of the receipt of the written grievance. The school principal will consult with the District Section 504 Coordinator. Should this attempt to resolve differences prove unsuccessful, parents have the right to request an impartial hearing of this decision by a hearing officer selected from a pool of volunteers who are not parents of students currently attending the District schools or current District employees. Upon receipt of a written request for an impartial hearing, the District will schedule such a Hearing within thirty (30) school days. The decision of the Hearing Officer(s) will be communicated to all parties within ten (10) school days of the hearing date. To obtain a hearing, request should be made to the District Section 504 Coordinator. Parents/guardians and the school district have the right to be accompanied and advised by legal counsel. Parents/guardians may also request mediation or involvement by the Office for Civil Rights, the federal agency charged with the enforcement responsibility for Section 504. Efforts should be made however to assist persons to resolve disputes on a local level as a first priority. Should there be any questions regarding procedural safeguards, grievance procedures or hearing, please contact the Section 504 Coordinator, Larry Ruble, at 941-436-6474. D Sec me Sec ide spe fort ing the course of OCR's investigation, the District amended its procedures in its ion 504 Manual. The revised procedures provide additional information about iation and state that the hearing officer will be a legal professional with expertise in ion 504. They also describe how Section 504 grievances involving disputes over the tification, evaluation, and placement of students who need or are believed to need ial instruction and related services will be processed. These amendments are set ,in pertinent part, below:
Mr Hughes and Ms. Cannivet Pa e 5 Should this initial attempt to resolve differences prove unsuccessful, parents/guardians have a right to request mediation with the Section 504 Administrator. If mediation reaches impasse, the parent has the right to request an impartial due process hearing of this decision. The District will contract with a legal professional with expertise in the area of Section 504/ADA to serve as a hearing officer. To ensure impartiality the hearing officer may not be a parent/guardian of students currently attending the District schools or current District employee ... .If the above attempts do not remedy the complaint, the parent may file a local grievance to the District School Board of Collier County. The District School Board has the right to final administrative decisions regarding Section 504 complaints. Parents may choose to file a local grievance prior to filing suit in a court of appropriate jurisdiction. Du ing OCR's investigation, the District provided OCR with additional information reg ding its Section 504 procedures. In a letter dated September 5, 2007, the District's Ex cutive Director of Student Services and the Section 504 Coordinator informed OCR tha if the parent files a Section 504 due process hearing request, but also at the same time or I ter files a complaint with OCR, then the District considers the due process hearing reg est to be moot. According to the Section 504 Coordinator and the School Board Att rney, if the parent is dissatisfied with the hearing 0 ffieer' s decision, then the parent's s of appeal is to the Board of Education, which is the final review authority. The n of going to the Board, however, is only the right of the parent, not that of the ict administration. The Section 504 Coordinator explained that the District views oard as separate from the administration. According to the District official, this step IS t required for the exhaustion of administrative remedies prior to the filing a civil acti n. Instead, it is simply an option available to the parent if the parent wants to utilize it, i. e., a step the District offers to resolve disputes at the local level to avoid litigation, wh ever possible. The District's revised Section 504 Manual does not contain any Dis rict procedure for review or appeal other than to the Board. Its procedure beyond the Bo d or hearing officer, District officials explained, would be a one-tier procedure, i.e., foll wing the hearing officer's decision, either party could appeal the decision by filing a civil action in U.S. District Court. lysis and Conclusion
ts face, OCR found the following compliance issues with respect to the District's Sec ion 504 procedures, as set forth in its Section 504 Manual. OCR determined that m of the issues arose from confusion on the part of the District regarding the diff renee between a grievance or complaint and a due process hearing issue, the latter of whih involves disputes over the identification, evaluation, and placement of students wit disabilities or who are suspected of having disabilities. For instance, an example of a g evance would be that the District failed to evaluate a student or to provide a parent wit a due process hearing. An example of a due process issue would be that the parent and e Section 504 team, after a properly convened meeting, disagreed as to the amount
M Hughes and Ms. Cannivet Paze 6 of As ed Se utoring services to be provided to a student to provide a free, appropriate education. noted above, OCR investigates grievances and complaints and will not second-guess cational decisions made by a school district, provided that the process requirements of tion 504 have been met.
Wi h the above principles in mind, OCR specifically found that the District's Section 504 pr cedures do not make clear that a parent has the right to obtain a Section 504 due pr+ess hearing without first filing a grievance, submitting to mediation, or going to the BOfrd of Education. Although it is acceptable for a school district to offer mediation as an pption to resolving disputes, it cannot be mandatory and, if a parent wishes to proceed dir ctly to an impartial due process hearing, the District must honor that request. The pro edures also do not make clear that parents may file a grievance or complaint with o at any time without exhausting District procedures. Additionally, the procedures do not make clear that filing a complaint with OCR will not render moot the District's obl gation to honor a Section 504 impartial due process hearing request. Furthermore, the procedures do not provide clear notice regarding how a hearing officer's decision rna be impartially reviewed, as required by 34 C.F.R. § 104.36. Ad itionally, OCR found compliance issues with respect to the District's implementation of . s Section 504 Manual in response to the requests made by both of the complainants. Wi h respect to Complainant 1, although there was some confusion about his initial reqest for a hearing, his attorney later reiterated the request for a Section 504 hearing on Co plainant 1's behalf. Although District officials initially were going to convene a Se ion 504 due process hearing, they subsequently halted that process under a mistaken bel ef that the request became moot when Complainant 1 filed a complaint with OCR. Co plainant 2 requested a due process hearing under both IDEA and Section 504. The Dis rict did contact DOAH to conduct a hearing under IDEA. It is unclear whether Co plainant 2's Section 504 claim was subsumed by the IDEA claim, as the Ad inistrative Law Judge's decision makes no mention of Section 504. On the basis of the foregoing, OCR concludes that the District's Section 504 procedures as t forth in its Section 504 Manual, both on their face and as implemented, do not fully CO~PlY with the requirements of Section 504 in a number of respects. On September 24, 20 8, however, the District entered into the attached Resolution Agreement with OCR, w . h when fully implemented, will resolve the identified compliance issues. OCR will mo 'tor the District's implementation of the Resolution Agreement. If the District fails to ly implement it, OCR will reopen the case and take appropriate steps to ensure the Dis rict's compliance with Section 504 and Title II. Thi concludes OCR's investigation of this complaint, which is being closed effective the datof this letter. This letter of resolution should not be construed as covering any other iss es regarding compliance with Section 504 or Title II that may exist and are not ad essed in this letter. Complainants may file a private suit pursuant to Section 203 of the Americans with Disabilities Act, whether or not OCR finds a violation of Title II. Un er the Freedom of Information Act, it may be necessary to release this document and rel ed correspondence and records, upon request. If we receive such a request, we will
Mrl Hughes and Ms. Cannivet Pa e 7 see to protect, to the extent possible, any unwarranted invasion of privacy. Please note tha intimidation or retaliation against complainants by recipients of Federal financial ass stance is prohibited. No recipient may intimidate, coerce, threaten, or discriminate ag .nst any individual for the purpose of interfering with any right or privilege secured by the laws OCR enforces, or because one has made a complaint, or participated in an inv stigation in connection with a complaint. If you have any questions or concerns reg rding OCR's determination, please contact Mr. Roger Mills, Senior Attorney, at (40 ) 562-6362, or me at (404) 562-6350. Sincerely,
Thomas J. Hibino Acting Office Director
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SEP 2 5 2008
Collier Coonty School District, Florida
Complaint No. 04-07-1264
This atter was initiated by a complaint filed with the U,S. Department of Education, Offic for Civil Rights (OCR), pursuant to Section 504 of the Rehabilitation Act of 1973 (Sect on 504), as amended, 29 U.S.C. Section 794, and its implementing regulation, 34 C.F .. Part 104; and Title II of the Americans with Disabilities Act of 1990 (Title II), 42 U.S. . Sections 12131 et seq., and its implementing regulation, 28 C.F.R. Part 35.
ACT ON STEPS 1. The District will revise its policies and practices for Section 504 due process hearings as set forth in the section of its Procedures Manual: Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (20072008) entitled "Procedural Safeguards, Grievances, and Hearing" and Appendix F (2) entitled "Notice of StudentJParent Rights." 2. The revisions will: a. Clarify that the grievance procedure and the Section 504 due process hearing procedure are separate and distinct. b. Specify the rights and procedural steps for each. c. Clarify which issues are appropriate for grievance procedures processing. d. Clarify which issues are appropriate for Section 504 due process hearings. e. State that the parent/guardian has the right to obtain a Section 504 due process hearing i. without going through a grievance procedure; ii. without submitting to mediation, and iii. without going to the Board of Education. f. State that any mediation process in the Section 504 due process hearing process is voluntary and not mandatory. g. Develop and include a process by which any party aggrieved by the findings and decision in the due process hearing may appeal and receive an impartial review of that determination. If an avenue for such a review is not available through a Federal or state court because only Section 504 issues are involved, the District continues to have an obligation to provide the party with an impartial review consistent with the requirements of 34 C.F.R. § 104.36. h. State that if the relief sought under Section 504/Title II is also available under the Individuals with Disabilities Education Act of
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2004 (IDEA), then the due process hearing request will be processed instead under IDEA due process procedures because, where similar relief is sought, an IDEA due process hearing must be held before a u.s. District Court would have jurisdiction to hear the Section 504ITitie II claim. 3. The District recognizes that due process hearings based on claims brought under Section 504 and the same or similar claims filed with OCR for review are alternate remedies and the filing for one does not preclude the other. 4. The District will continue to provide training with respect to the Section 504 claim resolution procedure. Such training will include the following: a. District personnel: School psychologists and other non-school based District personnel implementing Section 504. b. School personnel: the Principal, the Section 504 School Liaison, the School counselors, the ESE staff members, and any other employees involved in Child and Adolescent Support Teams, Section 504 Committees, or Manifestation Determination Meetings. 5. The District will make its Section 504 Manual available to parents/guardians and other interested persons on its website and will prepare brochures or other materials containing Section 504 due process rights and procedures in summary form and distribute them in such a manner as to effectively notify interested persons. SIGHT PROCEDURES In orer for OCR to review the completion of the above actions to be undertaken by the Distri t, the District will provide its proposed changes to OCR in accordance with the follo ing timetable: 1. By October 17, 2008, the District submit its proposed revisions to its Section 504 Manual to OCR for approval. OCR will promptly notify the District of the results of its review of them for the limited purpose of confirming their compliance with Section 504 and Title II requirements. 2, Within 60 days of OCR's approval of the proposed revisions, the District will make its Section 504 Manual available to parents/guardians and other interested persons on its website, 3. Within 90 days of making its Section 504 Manual available on its website, it provide training to the District and school personnel stated above and will prepare brochures or other materials containing Section 504 due process rights and
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procedures, in summary form and distribute them in such a manner as to reach persons likely to have an interest in them. Upon completion of these actions, the District will provide OCR documentation of the completion of the staff training and information dissemination activities.
oilier County School District, Florida
9- .2/.f-O r
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